Congress shall make no law” restricting the free exercise of religion, freedom of speech, or of association. Aside from Christ’s distinction between duties to God and duties to Caesar, the First Amendment’s words are some of the greatest barriers ever erected against tyranny. But James Madison, who wrote them, warned how easily the ever-present temptation to tyrannize overcomes “parchment barriers.”
Until recently, the First Amendment was our Constitution’s least questioned, most treasured part. Today, growing calls for joining the rest of the world in criminalizing speech offensive to society’s most powerful groups remain anathema to most Americans. As the federal government applied the Bill of Rights to the states, the First Amendment was the first that it imposed upon them, in a 1925 Supreme Court decision called Gitlow v. New York. No one exercising government power at any level, no “state actor” may deprive anyone of his First Amendment rights. That’s how it works in theory, anyhow.
Nevertheless, most Americans sense that freedom to engage publicly in religious activity, to express ourselves, to choose with whom to associate (or not), is declining perhaps irreversibly. States, for example, have created “human rights commissions” that penalize businesses for refusing to take part in celebrating homosexuality. Public school employees are fired for praying on school grounds, and even children are punished for doing so. All know that certain opinions or attitudes, even casual remarks, deemed “offensive” by powerful persons preclude, derail, or end careers.
This re-prioritization naturally led to a re-defining of the First Amendment’s objective as ridding America of “discrimination” by private individuals. No one should be surprised that this change of focus, which initially led the courts to disallow laws permitting discrimination by private individuals against what came to be known as “protected classes,” ended in Justice Kennedy, writing for the Supreme Court’s majority, damning and well-nigh criminalizing the very motivations of such discrimination. How easily did “Congress shall make no law” become “Congress really must make a law…” !
And indeed Congress came close to making just such a law when on September 11, 2017 it passed a Joint Resolution, which President Trump signed under pressure, that none too subtly accused citizens on the American right of being party to “hate groups” and asked federal, state, and local agencies to “improve the reporting of hate crimes, and to emphasize the importance of the collection, and the reporting to the Federal Bureau of Investigation, of hate crime data.”
This is an intellectual and moral problem of the highest order for the people at the fountainhead of American law. It is a political problem, too, because the American people are already in a state of semi-revolt, and the courts know that they have been using up their legitimacy.
The problem within law and government, however, merely reflects the state of the larger ruling class of which the courts, Congress, and administrative apparati are part. Keep in mind the distinction between any government and the regime—what Aristotle called the “complex of offices and honors” of which government is the expression. In fact, by far the greater part of the restrictions on freedom of speech that we experience come from outside formal government—from academe and corporate America. No one disputes the effective existence of speech codes there. Just beyond the First Amendment’s reach not only does the ruling class penalize expressions at variance with its catechisms; people now feel pressed publicly to confess adherence to their tenets, or else.
This is a problem about the nature of our regime. The rise of our current ruling class has made a revolution. Resolving it, were it possible, would require equally revolutionary changes at the top of society. Americans on the Right would have to cease patronizing institutions unfriendly to them, thus leading them to change. More likely, it would have to set up alternative institutions. The decrease in the NFL’s viewership subsequent to its disrespect for the national anthem is a very small token of what might happen.
A much bigger problem of the same kind demands more significant action. Facebook and Twitter have become the overwhelming medium of communication among Americans, especially the younger generations, and have instituted algorithms that allow for the suppression of opinions with which their highly opinionated management disagrees.
The social media giant’s first defense—we’re not “shadowbanning”—are actually admissions. Twitter’s argument: “We do take actions to downrank accounts that are abusive, and mark them accordingly so people can still to click through and see this information if they so choose… This makes content less visible on Twitter, in search results, replies, and on timelines. Limiting tweet visibility depends on a number of signals about the nature of the interaction and the quality of the content,” That’s as good a definition of “shadowbanning” as one might want. Banning what? Objectionable to whom? A glance at Google’s corporate prejudices suffices to describe what the U.S. corporate mind tolerates and does not.
But social media and other corporations are private, not “state actors,” right? Yes. But they trammel our First Amendment rights nevertheless, even more than “state actors” do. What then is to be done about that?
The answer is clear enough, especially with regard to companies involved in communications: Pass a law that makes them “public utilities” for the purposes of the First Amendment. Such a law, unlike the FCC’s late, unmourned “Fairness Doctrine,” would not require the companies to do anything, nor to define “fairness or anything else,” nor balance anything. It would simply prohibit any company that offers itself to the general public from discriminating against any part thereof in any of their operations. The alternative would be to break up Google, Facebook, Twitter, Comcast, etc., as “Ma Bell” was broken up 35 years ago.
Communications companies cannot have their private freedom to discriminate against those they do not like—a freedom which everyone should have—with the power that they have acquired over who says what to whom.
The class that rules and currently defines our regime long ago despised the First Amendment. Whether we may rescue aspects of it for our protection remains to be seen.